!!Экзамен зачет 2023 год / The Law of Obligations

3. Gratis habitare

A difficult problem of delimitation cropped up where free habitation was granted.31 Was this still commodatum or did it not rather have to be considered as a case of donation? According to Labeo and the Proculians, land could not be the object of commodatum.32 This opinion, however, did not prevail: "sed ut apparet, proprie commodata res dicitur et quae soli est, idque et Cassius existimat."33 On that basis Vivianus was able to answer the question "Si gratuitam tibi habitationem dedero, an commodati agere possim?", in the affirmative.34 It is, however, not entirely clear whether gratis habitare was generally considered to fall under commodatum. Pomponius, for instance, applied the law of donation:

"In aedibus alienis habitare gratis donatio videtur. id cnim ipsum capere videtur qui habitat, quod mercedem pro habitatione non solvit, potest enim et citra corporis donationcm valerc donatio, velut si donationis causa cum debitore mco paciscar, ne ante certum tempus ab eo petam."35

This fragment refers to the lex Cincia de donis et muneribus, which limited gifts to a certain maximum amount.36 It can be read to imply a straightforward classification of gratis habitare as donation.37 It has been argued,3S however, that Pomponius, while not disputing the classification of this transaction as commodatum, nevertheless applied certain rules relating to the law of donation by analogy—the analogy being based on a fictitious splitting-up of the transaction into a contract of hire and a remissio mercedis, a remission of the rent. The latter, obviously, implies a gift of money. The problem, incidentally, is still exercising lawyers' minds today. The German Federal Supreme Court has in recent times managed to perform a surprising double-volte. Contrary to previous decisions, it has described in two pronouncements of 1970 the granting of free habitation as a donation of possession and use.39 In 1981 the court again changed its opinion; the transaction is now once more considered to constitute a loan for use.40

31 For a detailed analysis, see Klaus Slapmcar, Gratis habitare, Unentgeltliches Wohnen nach romischem und geltendem Recht (1981), pp. 41 sqq.; cf. also Gluck, vol. 13, pp. 450 sqq.

32Ulp. D. 13, 6, 1, 1.

33Ulp. D. 13, 6, 1, 1.

34Ulp. D. 19, 5, 17 pr. (". . . et Vivianus ait posse"). Cf. also Ulp. D. 13, 6, 1, 1 in fine:

"Vivianus amplius etiam habitationem commodari posse ait."

35Pomp. D. 39, 5, 9 pr.

36Cf. infra pp. 482 sqq.

3' Cf. also Pomp. D. 24, 1, 18, dealing with the prohibition of donation between spouses ("valet donatio").

18 Slapnicar, op. cit., note 31, pp. 82 sqq., 185 sqq.

39BGH, 1970 Neue Juristische Wochenschrift 941; BGH 1970 Wertpapier-Mitteilungen

1247.

40BGHZ 82, 354 sqq.; for an evaluation of this decision from a historical point of view, see Klaus Slapnicar, "Unentgeltliches Wohnen nach geltendem Recht ist Leihe, nicht Schenkung—Dogmengeschichtliches zu BGHZ 82, 354", 1983 Juristenzeitung 325 sqq.

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4.The liability of the borrower

(a)The diligentissimus paterfamilias

"Rei commodatae et possessionem et proprietatem retinemus: nemo enim commodando rem facit eius cui commodat."41 The position of the borrower was weak. Ownership of the borrowed object did not pass to the borrower; nor did he become possessor. He was a mere detentor. Apart from that, he was subject to a very strict type of liability. As to the range of this liability, the Digest has this to say:

"In rebus commodatis talis diligentia praestanda est, qualem quisque diligentissimus pater familias suis rebus adhibet, ita ut tanturn eos casus non praestet, quibus resisti non possit, veluti mortes servorum quae sine dolo et culpa eius accidunt, latronum hostiumve incursus, piratarum insidias, naufragium, incendium, fugas servorum qui custodiri non soient."42

And then, again, following on from the discussion of mutuum:

". . . is vero qui utendum accepit, si maiore casu, cui humana infirmitas resistere non potest, veluti incendio ruina naufragio, rem quam accepit amiserit, securus est. alias tamen exactissimam diligentiam custodiendae rei praestare compellitur."43

Both texts, interestingly, enumerate a couple of catastrophes for which the borrower could not be held liable. However, they also try to define, positively, what is expected of the borrower. But the superlatives used in this context (diligentissimus paterfamilias, exactissima diligentia) are not easy to understand. For normal negligence, we would expect to find a reference to the diligens paterfamilias.44 Can one be more diligent than diligent? The medieval lawyers evidently thought so and consequently came to distinguish various grades of negligence. As a counterpart to exactissima diligentia, the standard of culpa levissima was developed45 and dominated the discussion about the liability in commodatum fand certain other contracts) down to the 19th century.46 Or is the diligentissimus paterfamilias not a rather Utopian ideal, a paragon of circumspection endowed with the prophetic vision of the clairvoyant47 and thus able to prevent incidents for which one cannot blame a normal human being? But why then introduce this awesome creature in an attempt to define in subjective terms what obviously seems to have been liability attributed according to objective criteria, that is, independent of a blameworthy state of mind of the borrower? The answer to this question lies in Justinian's tendency, originating in Greek philosophy and reinforced by the Christian religion, to make

41Pomp. D. 13, 6, 8 and Ulp. D. 13, 6, 9.

42Gai. D. 13, 6, 18 pr.

43Gai. D. 44, 7, 1, 4. On exactissima diligentia, see De Robertis, Responsabilite

contrattttaie, pp. 323 sqq.; Tardivo, (1984) 204 Archivio Giuridica 296 sqq. 44 Cf. e.g. Paul. D. 10, 2, 25, 16; Paul. D. 19, 1, 54 pr.

45Cf. Accursius, gl. Diligentissimus ad D. 19, 2, 25, 7; Bartolus, D. 13, 6, 18 pr., § In rebus; cf. also e.g. Pothier, Traite du pret a usage et du precaire, nn. 48 sqq.

46For details of the development, cf. Hoffmann, Fahrlassigkeit, passim.

47Cf. Hawkins v. Coulsdon and Purley Urban District Council [19541 1 QB 319 at 341.

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fault the central element of the law relating to liability.48 As usual, he somehow tried to reconcile the old and the new, and thus he superimposed a subjectivizing terminology on the decisions of the classical lawyers.49 They, in turn, had held the borrower liable not only where he had been at fault but also for certain typical accidents. This is known as custodia liability.5" It was demarcated in a concrete and casuistical way and cannot therefore adequately be cast into an abstract formula.

(h) The nature of custodia liability

The essence of custodia liability has been succinctly summed up by Fritz Schulz:51

"(The borrower] was absolutely liable for certain typical accidents which were regarded as avoidable by properly watching and guarding the borrowed thing, and on the other hand he was not liable tor other typical accidents which were invariably regarded as not avoidable by the exercise of care."

1fa borrowed horse was stolen by a third person or it it was killed or injured by one of the borrower's friends, the borrower was responsible to the lender irrespective of whether he had in actual fact looked after the horse as well as possible, i.e. whether he could have prevented the incident in this individual case or not. If, on the other hand, the horse was taken away, injured or slaughtered by invading enemies or a gang of robbers, the borrower was not liable. Accidents of the latter type (of which Gaius gives a list of examples in both D. 13, 6, 18 pr. and D. 44, 7, 1, 4)52 are normally referred to as vis maior53 (or, to use the English terminology, as acts of God).54 Thus one can say that "liability for custodia implied a liability for lesser accidents (casus minor), i.e. . . . a liability for any loss not to be attributed to vis maior".55 This has come to be the prevailing view amongst Romanists in the 20th century,5'1 but

4H On the (justinianic) concept of diligentia and the yardstick of the diligens paterfamilias, see Wolfgang Kunkel. "Diligentia", (1925) 45 ZSS 266 sqq., 301 sqq.; Arangio-Ruiz.

ResponsabiHta contrattualc, passim; De Robertis, Responsibility contratniale, passim, e.g. pp. 171 sqq.; Tafaro, Regula, pp. 218 sqq. Cf.. m our context, Inst. Ill, 14, 2 ("exacta diligentia custodiendae rei").

■"Both Gai. D. 13. 6. IS pr. and Gai. D. 44, 7, 1, 4 are, in so far, interpolated. Cf. e.g. Kunkel. (1925) 45 ZSS 271 sq.; Агапціо-Ruiz, ResponsabiHta contratttuh1, pp. 66 sqq.

*' Gai. III. 206; Ulp. D- 13, 6, 5, 5. 51 CRU p. 515.

l2 Cf. also Inst. I I I . 14, 2 and Ulp. D. 50. 17, 23.

"^ Theo Mayer-Maly, "Hohere Gewalt: Falltypen und Begriffsbildung", i n: Festschriftjur Artur Slt'ittweitter (1958), pp. 58 sqq.; Giuseppe Ignazio Luzzatto, Om> fitortuito e jorza million' come Utilite alla responsabilite contratiuale, vol. I (1938); Inire Moltiar, "Die Ausgestaltung des Begriffes der vis maior im romischen Recht". (1981) 32 Iura 73 sqq.

"^4 Or, to quote Hcineccius, F.lemenia Iuris Civilis, Lib. MI, Tit. XIV. § 784: "Casus est eventus a divina providentia profectus. cui resisti non potest."

" Schulz, CRL, p. 515.

ы> First put forward byj. Baron, "Die Haftung bis zur hoheren Gewalt", (1892) 78 Archiv fur die civilistisch? Praxis 203 sqq. and Emil Seckel, in: Heurmnn/Seckcl, pp. 116 sqq. Cf. today e.g. Antoiiino Metro, L'obbligaziotie di custodire fiel diritto rotnano, passim; Cannata.

Responsabilite (ontruttuiilr, Kaser, RPr I. pp. 506 sqq.; Honsell/Mayer-Maly/Selb, pp. 233 sqq.

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it has not remained unchallenged.57 Custodia, in the sources, is not used as an unequivocal technical term of law. Thus, it has been argued that it expresses not a general category of liability but the content of an obligation. And, indeed,58 "custodiam praestare" originally and primarily meant to furnish (and not to be liable for) custodia; it referred to the actual behaviour required of the person under the obligation, namely to keep the object safe. What he owed was in the first place the prevention of theft; in classical law, the content of his obligation was extended to cover certain cases of damage done to the object by third persons.59 As a corollary, or spin-off, of this obligation, however, custodia came to be used also as a standard of liability: in case of breach of custodia (i.e. when a theft or some damaging event had occurred) the lender could bring the actio commodati, just as, for instance, the depositor could bring the actio depositi if the depository had acted fraudulently. Custodia therefore contained a guarantee to provide a certain result—namely to keep the object safe—which was tacitly implied in certain types of obligations (as, for instance, commodatum), but could also be expressly undertaken in others.60 Yet, this guarantee (and consequently: liability for custodiam praestare) was not considered to be an absolute one; it was not taken beyond the limits of what could still be regarded, from an objective point of view, as humanly possible. Impossibilium nulla obligatio est:61 nobody can promise what is impossible, namely to furnish a degree of custodia that will exclude damage by, say, an earthquake. These limitations of custodia, as has already been pointed out, came to be characterized as cases of vis rnaior,

The literature is virtually boundless ("| I he subject is] snowed under with books and articles, with theories, comments, opinions and prejudices to such a degree, that hardly anybody ventures to undertake (a) reappraisal": Van den Bergh, infra, note 57, p. 59). There are three main problems that have triggered oft this prolific production of legal literature on custodia: a terminological one (the ambiguous nature of the term custodia in classical law), a historical one (the difference between classical and Justinianic law) and a policy-oriented one (custodia, esp, ы the 19th century, as one of me battle grounds for the basis of the law concerning liability; necessarily subjective, i.e. based on fault, or not?). For the traditional (prc-Baron and -Scckcl) approach (custodia as a mere species diligentiae), see e.g. Hasse, Culpa, pp. 281 sqq. It is on this basis, incidentally, that custodia liability has not been incorporated into the BGH (with the exception ot § 701 12; see infra, p. 521): "Motive", in: Mugdan, vol. II, p. 15.

^ Cf. particularly Geoffrey MacCormack, "Custodia and Culpa", (1972) 89 ZSS 149 sqq. (e.g. p. 155: "A person required to show custodia is not normally liable for loss through theft or otherwise unless there has been fault on his part") and G.C.J.J. van den Bergh, "Custodiam praestare: custodia-Liability or Liability for failing custodia", (1975) 43 TR 59 sqq. (e.g. p. 71: "Custodia was . . . a liability for failure to guard properly over things one has in his keeping tor reasons ot profit"); idem, "Custodia and furtum pignoris", in: Sttidi in ot tore di Cesare Sanfilippo, vol. I (1982), pp. 601 sqq.; most recently, ct. Rene Robaye,

L'obligation de garde, tissai sur ta responsabilite contractuelle en droit romain (1988).

M As to the following, cf. especially Cannata, Responsabilite contrattuale, passim.

54 lui./Marcel]. D. 19. 2, 41 as opposed to lui. D. 13, 6, 19. On these texts, Cannata,

Responsabilite contrattuale, pp. 61 sqq., 85 sqq.

(' Cannata, Responsabilite contrattuale, pp. 102 sqq.; Kaser, RPr I, p. 5(17.

M Ccls. D. 5(1, 17, 185. On philosophical implications of this maxim ("ought implies can"), see Joachim Hruschka, "Zwei Axiome des Rechtsdenkens", in: Aus dem Hamburger Rechtsleben, Festschrift fur Writer Reimers (1979), pp. 459 sqq.

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but were always conceived in a casuistic manner: they constituted a certain class of situations in which liability was excluded, because the fact that the guarantee had not been kept could typically not be attributed to the debtor. Custodia liability, therefore, did not presuppose fault.

This specific feature of classical Roman law should, I think, not be regarded as archaic or primitive.62 Over the last hundred years we can observe a growing dissatisfaction with fault. Culpa as the essential cornerstone of our system of liabilities has come under attack, and the idea of allocating and demarcating spheres of risk according to objective criteria rather than necessarily basing liability on individual responsibility is a thoroughly modern one.63 The "Spharentheorie" in modern German labour law, established by the Supreme Court of the German Reich and further refined, after the Second World War, by the Federal Labour Court, is but one example.64

(c) The range of liability; instances of liability for vis maior

Of course, whoever was responsible for custodia was a fortiori liable for dolus and culpa too.65 The borrower was not liable for any deterioration of the object arising from wear and tear through normal use; he was liable, however, for careless handling:

"Eum, qui rem commodatam accepit, si in earn rem usus est in quam accepit, nihil praestare, si earn in nulla parte culpa sua deteriorem fecit, verum est: nam si culpa eius fecit deteriorem, tenebitur."66

Where the borrower, through his negligence, enabled a third party to steal or damage the object, he was obviously liable. His fault normally did not even matter (and thus did not have to be proved), as he was liable for custodia anyway. It did, however, become relevant where the borrower had used the thing contrary to the terms of the contract. The

62See, however, Schulz, CRL, p. 515.

63Cf. e.g. Walter Wilburg, Die Elemente des Schadensrechtes (1941), pp. 112 sqq., 124 sqq.

64RGZ 106, 272 sqq.; BAGE 3, 346 sqq. 1f an employee is unable to perform his services, the decision whether or not he can demand remuneration depends on whether this inability has its origin in the sphere of the employer (breakdown of electricity supply, unavailability of raw materials, fire, defects in the machinery, etc.) or of the employee (strike in his own or in other factories). Cf. for details Schaub, in: Munchener Kommentar, vol. HI 1 (2nd ed., 1988), § 615, nn. 93 sqq.; for a most interesting historical analysis, see Eduard Picker, "Richterrecht oder Rechtsdogmatik—Alternativen der Rechtsgewinnung?—Teil 2", 1988

Juristenzeitung 62 sqq.

65Cf. e.g. Kaser, RPr I, p. 511; Joachim Rosenthal, "Custodia und Aktivlegitimation zur Actio furti", (1951) 68 ZSS 258 sqq.

66Ulp. D. 13, 6, 10 pr.; cf. also § 602 I BGB. What if during a fire the borrower saved his own property in preference to what he had borrowed? ". . . si incendio vel ruina aliquid contigit vel aliquid amnum fatale, non tenebitur, nisi forte, cum possit res commodatas salvas faccre, suas praetulit" (Ulp. D. 13, 6, 5, 4). This case, "which is somewhat nice and curious" (Story, Bailments, § 245), has been interpreted in various ways, usually as indicating that to prefer one's own property in a dangerous situation amounts to negligence; cf. e.g. Voet, Commentarius ad Pandectas, Lib. XIII, Tit. VI, IV; Pothier, Traite du pret a usage et du precaire, n. 56; Gluck, vol. 13, pp. 438 sqq.; Story, Bailments, §§ 245 sqq.

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contract of commodatum gave the borrower the right to use what was handed over to him for a specific purpose.67 1fhe used it for purposes other than the one agreed upon, or if he went beyond what the parties had in actual fact envisaged, he did not only commit (in modern terminology) a breach of contract; the borrower, in these instances, unlawfully appropriated to himself a specific use of the object lent to him, and in Roman law such "stealing" of the use {"furtum usus") satisfied the requirements for the delict of theft.68 Thus, for instance, a horse borrowed for the purpose of joy-riding must neither be taken further than the distance agreed upon nor be used as a battle horse.69 If somebody has been given silver cutlery to be used for a dinner party, he must not take it on a sea voyage overseas.70 1fa slave has been lent to work as a fresco painter on the ground, the borrower must not put him on a scaffold and ask him to decorate the third storey of his house.71 In all these instances, the unauthorized conversion of use had the consequence of increasing the borrower's liability, beyond custodia, so as to cover incidents of vis maior too.72 If the horse was killed by the enemies, if the cutlery was taken by Silician corsairs, if the fresco painter on his scaffold was struck by lightning: in all these cases the borrower was now liable under the actio commodati, even though the incidents normally fell outside his responsibility for custodia. The borrower, in other words, had to carry the full periculum rei: whatever happened to the thing, subsequent to the furtum usus, was attributed to him. It is not entirely clear from the sources whether there had to be a specific (causal) connection between the wrongful act of the borrower and the occurrence of the vis maior; so that, for instance, the borrower would not have been liable if the horse that he took (but was not supposed to take) on a ride to Rome was injured by an earthquake, which would also have struck it had it been quietly grazing on the borrower's pasture.73 Depending on the answer to this question, the

67 Gluck, vol. ]3, pp. 430 sqq. Cf. also e.g. supra, note 1.

6R Gai. Ill, 196. If the borrower believed that the lender would have approved of this deviation from the contract, he was not liable: "Qui re sibi commodata . . . usus est aliter atque accepit, si existimavit se non invito domino id facere, furti non tenetur" (Pomp. D. 47, 2, 77 pr.). Further on furtum and furtum usus, cf. infra, pp. 922 sqq.

69Cf. Pomp. D. 13, 6, 23; Ulp. D. 13, 6, 5, 7.

70Cf. Gai. D. 13, 6, 18 pr.; Gai. D. 44, 7, 1, 4.

71Cf. U lp. D . 13, 6, 5, 7.

72Cf. e.g. Gai. D. 44, 7, 1, 4: "sed et in maioribus casibus, si culpa eius interveniat, tenetur"; Ulp. D. 13, 6, 5, 4: ". . . nisi aliqua culpa interveniat. " Cf. also Lord Holt in Coggs v. Bernard (1703) 2 Ld Raym 909 at 915 (". . . as if a man should lend another a horse, to go westward . . .; if the bailee go northward . . ., if any accident happen to the horse in the northern journey, . . . the bailee will be chargeable; because he has made use of the horse contrary to the trust he was lent to him under, and it may be if the horse had been used no otherwise than he ■was lent, that accident would not have befallen him", quoting Bracton for this proposition); Lilley v. Doubhday [1881] 7 QB 510 at 511 (per Grove j); Jones, Bailments, pp. 67 sq.; Story, Bailments, §§ 232 sq., 241 sq.

73Cf. e.g. Windscheid/Kipp, § 375, n. 10 a, on the one hand, Van Leeuwen, Censura Forensis, Pars I, Lib. IV, Cap. V, 4 ("De casu forcuito commodatarius numquam tenetur.

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borrower's liability was either based on culpa in these cases,74 or on the idea that a wrong, once committed, taints all the consequences flowing therefrom: versanti in re illicita, omnia imputantur quae ex delicto sequuntur, to quote the famous adage of the medieval canon lawyers,75 the origin of the notorious versari doctrine of modern criminal law.76 Except for these cases, where culpa aliqua interveniat, the borrower could be liable for vis maior on account of a special agreement to this effect. The parties to a contract were free to vary the standard of liability (". . . sed haec ita, nisi si quid nominatim convenit (vel plus vel minus) in singulis contractibus")77 and thus the custodia liability of the borrower was by no means mandatory.78 Just as, therefore, the borrower could undertake to be liable only for dolus, or for dolus and culpa,79 so he could assume the full periculum rei ("Versicherungshaftung") .m When and how far he had in actual fact done so, was often a matter of interpretation; one of the most interesting cases in this context (which has left its traces in some modern codes),81 is the valued loan. Where goods have been estimated at a certain price, the borrower, according to Ulpian, must be considered as bound to restore either the objects lent or their value, no matter what has happened: ". . . omne periculum praestandum ab eo, qui aestimationem se praestaturum recepit."82

Nisi expresse ita convenerit, ant si culpa casui occasionem aut causam dedcrit") on the other. One could also think of restricting the liability of the borrower to cases where his wrongful act has increased the risk of this specific vis maior, e.g. if the silver plates, which the borrower was supposed to have used at home, had been lost in a shipwreck; not so if they had been struck by lightning (which could just as well have happened at home). For further examples, see Story, Bailments, §§ 241 sqq,

74 Cf. Van Leeuwen, loc. cit.: "Sed hoc casu, non tarnen propter casum, quam propter culpam lenetur."

5 For details, see Horst Kollmann, "Die Lehre vom versari in re illicita im Rahmen des Corpus juris canonici", (1914) 35 ZStW46 sqq.; H.L. Swanepoel, Die leer van "versari in re illicita" in die strajreg (1944). For a legislative realization of this doctrine, see art. 146 CCC.

76As far as modern private law is concerned, liability for accidental loss continues to be imposed on the borrower who exceeds his right of use, by art. 1881 code civil, art. 1805 II codice civile and many other modern codifications. The German BGB is silent on the point; hence the dispute in modern literature (cf. e.g. Kollhosser, in: Munchener Kommentar, vol. Ill 1 (2nd ed., 1988), §§ 602, 603, n. 3). For a discussion of the problem in modern law and its historical ramifications, see Andreas Wacke, "Gefahrerhohung als Besitzverschulden", in:

Festschrift fur Heim Huhner (1984), pp. 689 sqq.

77Ulp. D. 50, 17, 23.

m That is, he could insure the lender against accidental loss, even where it originated in an incident of vis maior. Cf. Paul Kruckmann, "Versicherungshaftung im romischen Recht", (1943) 63 ZSS 1 sqq. Cf. also Story, Bailments, § 252.

81Cf. art. 1883 code civil and art. 2901 Louisiana Civil Code, discussed by Alan D. Ezkovitch, (1983-84) 58 Tuiane LR 359 sqq.

82Ulp. D. 13, 6, 5, 3; cf. also Ulp. D. 19, 3, 1, 1 and Pothier, Traite du pret a usage et du precaire, nn. 62 sqq.; Jones, Bailments, pp. 71 sq.; Gluck, vol. 13, pp. 434 sqq.

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(d) The principle of utility

If we attempt to determine why the borrower was (normally) liable to the strictest possible degree, we must look at who benefited from and therefore had a specific interest in the contract. The Roman lawyers, in determining the degree of diligence that the contractual partners could reasonably expect from each other, were guided by the principle of utility ("Utilitatsgedanke").83 He who asks a favour has no right to expect very favourable treatment when it comes to determining the question of liability for loss or destruction; he, on the other hand, who accepts a burden, may reasonably presume that he will not be required to exercise the same amount of diligence as if he had received a benefit.84 Fraudulent behaviour, however, can under no circumstances be condoned. Dolus, therefore, must be the minimum for which contractual partners are liable to each other in any event. In the case of commodatum, things are lent "oftenest to the borrower's use alone".85 Hence his custodia liability:

"Quae de fullone aut sarcinatore diximus, eadem transferemus et ad eum cui rem commodavimus. nam ut illi mercedem capiendo custodiam praestant, ita hie quoque utendi commodum percipiendo similiter necesse habet custodiam praestare."86

It follows from this that where, for once, the loan was made in the interest of the lender (as, for instance, where "a passionate lover of music were to lend his own instrument to a player in concert, merely to augment his pleasure")87 the borrower's liability cannot be for custodia, but "[he] is holden only for the grossest faults":88 for dolus, according to Roman law.89 Ulpianus provides some further examples of lenders keen to boast with the wealth of their (future) wives or with the splendour of games which they were about to organize:

"Interdum plane dolum solum in re commodata qui rogavit praestabit, ut puta si quis ita convenit: vel si sua dumtaxat causa commodavit, sponsae forte suae vel uxori, quo honestius culta ad se deduceretur, vel si quis ludos edens praetor scaenicis commodavit, vel ipsi praetori quis ultro commodavit."90

83Cf. esp. Bernhard Kubier, "Das Utilitatsprinzip als Grund der Abstufung bei der Vertragshaltung im klassischen romischen Recht", in: Festgabe der Berliner juristischen Fakultat ?ir Otto v, Qiercke (1910), vol. II, pp. 235 sqq.; Dietrich Norr, "Die Entwicklung des Utilitatsgedankens im romischen Haftungsrecht", (1956) 73 ZSS 68 sqq.; Michel, Gratuite, pp. 325 sqq.; Hoffmann, Fahrlassigkeit, pp. 16 sqq.; Tafaro, Regula, pp. 123 sqq., 207 sqq.; for Justinian's time, see Afr. D. 30, 108, 12; Ulp. D. 50, 17, 23 (both spurious) and De Robertis, Responsibilita contrattuate, pp. 13 sqq. Cf. also Coggs v. Bernard (1703) 2 Ld Raym 909 at 915.

84Story, Bailments, § 17.

85Stair, The Institutions of the Law of Scotland (Edinburgh, 1832), I, 11, 9.

86Gai. Ill, 206.

H7 Jones, Bailments, p. 72.

88Stair, loc. cit.

89In later times usually for gross negligence also; cf. e.g. Voet, Commentarius ad Pandectas, Lib. XIII, Tit. VI, IV; "Motive", in: Mugdan, vol. II, p. 250 and D.J. Joubert, in: Joubert

(ed.), The Law of South Africa, vol. 15 (1981), n. 281. 90 Ulp. D. 13, 6, 5, 10.

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The same considerations applied where an object was given to a person for examination:

"Si rem inspectori dedi, an similis sit ei cui commodata res est, quaeritur. et si quidem mea causa dedi, dum volo pretium exquirere, dolum mihi tantum praestabit: si sui, et custodiam."91

What if the contract is in the interest of both the lender and the borrower? Here the extreme options of either imposing custodia or merely dolus liability on the borrower are both equally unsatisfactory. Hence, we find Gaius suggesting the via media of culpa liability:

". . . si utriusque [gratia commodata sit res], veluti si communem amicum ad cenam invitaverimus tuque eius rei curam suscepisses et ego tibi argentum commodaverim, scriptum quidem apud quosdam invenio, quasi dolum tantum praestare debeas: sed videndum est, ne et culpa praestanda sit. . . ,"92

Or, as Story put it:

"When the bailment is reciprocally beneficial to both parties, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect."93

As far as commodatum is concerned, this very differentiated way of looking at the borrower's position has not been preserved everywhere; according to the BGB, for instance, the normal principle of § 276 I 1 ("A debtor is responsible . . . for wilful conduct and negligence") applies.94 Generally speaking, though, it is quite true that the determination of contractual liability on the basis of considerations of utility, that is, according to the parties' balance of interest in the particular type of contract, is so "rational, just, and convenient",95 that it has not only left its mark on continental jurisprudence96 but underlies even the common law to such an extent that Story saw the legal systems as being "in perfect conformity"97 on this matter.

91Ulp. D. 13, 6, 10, t.

92Gai. D. 13, 6, 18 pr.; on this text cf. Norr, (1956) 73 ZSS 82 sqq.

Bailments, § 23; cf. also § 238 and Pothier, Traite du pret a usage et du precaire, nn. 50 sq. ;

Jones, Bailments, p. 72.

94Reasons: on the one hand custodia liability was not incorporated into the BGB. On the other hand, those cases where the loan is in the interest of the lender alone are too rare to warrant special consideration; furthermore, it is doubtful, under those circumstances, whether the parties really intend to contract a commodatum.

95Story, Bailments, § 23.

96Cf., for example, Heineccius, Elementa Iuris Chilis, Lib. Ill, Tit. XIV, § 788: "In contractibus, in quibus penes unum commodum, penes alterum incommodum est, ille ordinarie culpam et levissimam; hic non nisi latam praestat. Ubi par utriusque contrahentis commodum atque incommodum est, culpa etiam levis ab utroque praestanda est. Qui sua sponte se contractui obtulit, vel obligationem suscepk, in qua personae industria summa requiritur, quamvis solum incommodum sustineat, tarnen ad culpam levissimam tenetur. Qui alteri rem ultro obtulit, ex qua ei soli commodum obveniat, non nisi latae eulpae praestationem exigere potest"; Vinnius, Institutions, Lib. Ill, Tit. XV, n. 12 (sub

"commodatum"); Pothier, Traite des obligations, n. 142. Cf. further Michel, Gratuite, pp. 355 sqq.

97 Bailments, % 18.

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(e) The actio furti of the borrower

In Roman law, if the borrower was normally liable for custodia, this had a very interesting consequence in cases where the borrowed object was stolen. Here, the law provided (inter alia) the actio furti, a penal action for either twofold or fourfold the value of the stolen object.98 This action was, of course, usually available to the owner." In the case of commodatum, however, the owner did not really have to bear the risk of theft, since the borrower was always liable to him. Whether the latter, in looking after the object, had been negligent or not, whether he had made the theft possible or could have prevented it, this was one of the typical incidents for which he was liable in any event. The lender therefore being well protected, it was actually the borrower who had an interest in the safety of the thing (". . . cuius interest rem salvam esse").100 This is why the classical jurists were prepared, as long as he was solvent, to allow him (and anybody else who was liable for custodia) to sue the thief.1Ш Thus it was the borrower and not the lender/owner who could avail himself of the actio furti.

5.The actio commodate contraria

(a)Commodatum as imperfectly bilateral contract

We have thus far been dealing with the duties of the borrower. It has also already been mentioned that, if he did not duly restore the thing after the termination of the loan, the lender could bring the actio commodati. In turn, the borrower might, under certain circumstances, have an action against the lender: the actio commodati contraria. The existence of this contrarium iudicium was a characteristic difference between commodatum and both stipulatio and mutuum, which were unilaterally binding contracts. However, it would not be quite correct to place commodatum unqualifiedly into the opposite category of bilateral contracts. The decisive point is that it was not necessarily unilateral; a counterclaim could exist if (and only if) the borrower had incurred expenses or suffered damages. Whereas the actio commodati (directa) was an essential and indispensable element, intrinsically inherent in this type of legal relationship ("principalis actio", as Paulus puts it),102 the counterclaim was only incidental; it was available to the borrower, depending on whether or not its specific prerequisites had been met in each individual case.103 Thus we can call commodatum an

98 For details c(. infra, pp. 932 sqq.

w Paul. D. 47, 2, 47; Paul. D. 47, 2, 67, 1; Pap. D. 47, 2, 81, 1.

100Gai. Ill, 203.

101GaiIII, 205 sq.; Mod. Coll. X, II, 6.

102D, 13, 6, 17, 1.

103In classical law, the contrarium judicium could be brought irrespective of whether the lender had sued the borrower with the actio directa. Originally, the borrower's claims could probably be taken into consideration only by way of compensatio or retentio, later also by

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